IN THE CASE OF:	  

		BOARD DATE:	  	  2 April 2009

		DOCKET NUMBER:  AR20080019014 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect, at the time of his discharge he was not of sound mind and he was under a tremendous hardship as a result of the death of his mother.  He also states that he was experiencing emotional stress stemming from his drug addiction, post traumatic stress disorder (PTSD), and possible chemical exposure.

     a.  The applicant states he served his first tour of duty in South Vietnam from 27 August 1966 to 28 August 1967 and he reenlisted in January 1968.  He also states that he returned to Vietnam and served from 8 August to 19 August 1970, until he was notified by the American Red Cross that his mother had suffered injuries as a result of her cancer.  He adds that his mother died the following year.

     b.  The applicant states the decisions he made at this time in his life were not good nor were they responsible.  The applicant concludes by requesting favorable consideration of his application based on his contributions as a combat-wounded war veteran and adverse affect the Vietnam War had on him.



3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 12 November 2008, and a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 28 June 1974.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel records show he enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 17 March 1966.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty on 17 March 1966.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Purple Heart, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Expert Marksmanship Qualification Badge with Rifle Bar.  The DD Form 214 shows the applicant was honorably discharged on 30 January 1968 for the purpose of immediate reenlistment in the RA.  At the time he had completed
1 year, 10 months, and 14 days of net active service this period and 1 year of foreign service in Vietnam.

4.  The applicant reenlisted in the RA for a period of 6 years on 31 January 1968.

5.  The applicant’s military personnel records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated
15 February 1968.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about
0800 hours, on 13 February 1968, at Fort Benning, Georgia, without proper authority, absenting himself from his place of duty at which he was required to be, to wit:  the Noncommissioned Officer Academy, located at Fort Benning, Georgia, and he remained so absent until on or about 2000 hours, 13 February 1968, in violation of Article 86, UCMJ.  His punishment consisted of reduction to Private First Class (E-3) (suspended for 60 days), 14 days of extra duty, 14 days of restriction, and a forfeiture of $39.00.

6.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Infantry Center Troop Command, Fort Benning, Georgia, Special Court-Martial Order Number 111, dated 17 February 1969, that shows the applicant was charged with violation of the UCMJ, Article 86, with the Specification that the applicant did, on or about 27 November 1968, without proper authority, absent himself from his unit, to wit:  U.S. Army Overseas Replacement Station, located at Fort Dix, New Jersey, and did remain so absent until on or about 14 January 1969.  This document also shows the applicant entered a plea of guilty to the Specification and Charge and he was found guilty.

     a.  On 13 February 1969, the sentence was adjudged.  The applicant was sentenced to confinement at hard labor for four months, a forfeiture of $70.00 per month for four months, and to be reduced to the rank of Private (E-1).  No previous convictions were considered.

     b.  On 17 February 1969, the convening authority approved the sentence, but the execution thereof was suspended effective 18 February 1969 for four months at which time, unless the suspension was sooner vacated, it was to be remitted without further action.  The applicant was ordered confined in the Post Stockade, Fort Benning, Georgia, and the confinement served therein or elsewhere as competent authority may direct.

7.  The applicant’s military personnel records contain a DA Form 2627-1, dated
18 June 1969.  This document shows that nonjudicial punishment was imposed by the commander against the applicant for, on or about 15 April 1969, at Fort Dix, New Jersey, without proper authority, absenting himself from his unit, to wit:  the Overseas Replacement Station, located at Fort Dix, New Jersey, and he remained so absent until on or about 7 June 1969, in violation of Article 86, UCMJ.  His punishment consisted of reduction to Private First Class (E-3) and a forfeiture of $40.00 for one month.

8.  The applicant’s military personnel records contain a copy of Headquarters,
Special Troops, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, Special Court-Martial Order Number 808, dated 31 October 1969, that shows the applicant was charged with violation of the UCMJ, Article 86, with the Specification that the applicant did, on or about 15 August 1969, without authority, absent himself from his unit, to wit:  Company C, 4th Battalion, 54th Infantry, located at Fort Knox, Kentucky, and he remained so absent until on or about 29 September 1969.  This document also shows the applicant entered a plea of guilty to the Specification and Charge and was found guilty.

     a.  On 21 October 1969, the sentence was adjudged.  The applicant was sentenced to perform hard labor without confinement for 45 days and to be restricted to the limits of Fort Gordon, Georgia, for 45 days.  No previous convictions were considered.

     b.  On 31 October 1969, the convening authority approved and ordered the sentence duly executed, but the execution of that portion pertaining to performance of hard labor without confinement for 45 days was suspended for
45 days, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

9.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).

     a.  Item 31 (Foreign Service) shows that he served in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 27 August 1966 through
28 August 1967, and that he was then assigned to serve in the USARPAC RVN beginning 8 August 1970.

     b.  Item 38 (Record of Assignments), in pertinent part, shows the applicant was assigned to Company D, 3rd Battalion, 21st Infantry, 196th Infantry Brigade (RVN, USARPAC) from 6 September 1966 to 21 August 1967.  This item also shows he was assigned to Company C, 4th Battalion, 23rd Infantry, 25th Infantry Division (RVN, USARPAC) from 17 August to 19 August 1970, and he was then dropped from the rolls (DFR).

     c.  Item 40 (Wounds) shows the applicant sustained multiple fragment wounds to his chest and upper extremities on 29 January 1967.

10.  The applicant’s military personnel records are absent any evidence that show he submitted a request for emergency leave, compassionate reassignment, or hardship discharge based on personal/family reasons.

11.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 23 May 1974, that shows the Commander, U.S. Army Personnel Control Facility, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, preferred charges against the applicant, in that he did:

     a. on or about 21 July 1970, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit:  Company A,
1st Battalion, 29th Infantry, U.S. Army Infantry Center, located at Fort Benning, Georgia, and did remain so absent until on or about 2 September 1973; and

     b. on or about 18 December 1973, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit:  Personnel Control Facility, located at Fort Ord, California, and did remain so absent in desertion until he was apprehended on or about 26 April 1974.

12.  The applicant’s military personnel records are absent a complete copy of the applicant’s separation packet.  

13.  The applicant's military personnel records contain his DD Form 214 that shows he entered this period of active duty on 31 January 1968 and he was discharged on 28 June 1974 with a character of service of under other than honorable conditions in accordance with the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service with the Separation Program Designator (SPD) Code of "246."  This document also shows that at the time of discharge the applicant had completed 2 years, 5 months, and 25 days of net active service this period;
1 year, 10 months, and 14 days of prior active service; 4 years, 4 months, and
9 days of total active service; and 11 days of foreign service.  The DD Form 214 shows the applicant had time lost under Title 10, U.S. Code, section 972, totaling 1,328 days of lost from 27 November 1968 to 13 January 1969, 15 April to
6 June 1969, 15 August to 28 September 1969, 21 July to 18 August 1970,
19 August 1970 to 1 September 1973, and 18 December 1973 to 30 January 1974; and 85 days lost time sequent to his normal expiration term of service (ETS) date from 31 March to 25 April 1974, which equates to a total of 1,413 days lost during the period of service under review.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon ETS; authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to a general discharge under honorable conditions because he was not of sound mind; he was under a tremendous hardship as a result of the death of his mother; and he was experiencing emotional stress stemming from drug addiction, PTSD, and possible chemical exposure.

2.  There is no evidence that the applicant submitted a request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal/family reasons.  There is also no evidence of record that Army officials denied such a request during the period of service under review.

3.  There is no evidence that the applicant was found unfit for retention in the military.  In addition, the applicant provides insufficient evidence to support his contention that he was of an unsound mind, that he was under a tremendous hardship as a result of the death of his mother, that he was experiencing emotional stress related to drug addiction, that he was experiencing PTSD, or that his possible exposure to chemicals contributed to such conditions.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  However, the applicant fails to provide sufficient credible evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, the presumption is the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows the applicant had 1,413 days (i.e., more than
3 years and 10 months) time lost during the period of service under review.  In addition, the evidence of record shows the applicant completed less than 2 years and 6 months of his 6-year enlistment commitment.  Thus, the evidence of record shows the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080019014



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ABCMR Record of Proceedings (cont)                                         AR20080019014



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